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Coroners and Justice Bill

My Lords, about a year or so ago when we were involved with the Criminal Justice and Immigration Bill, I made the rather irreverent suggestion that, as an obverse to the Bill of Rights of 1689, we might consider that Parliament be limited to no more than one criminal justice Bill a year. Little did I know then that we would be involved with legislation dealing with the anonymity of witnesses within a matter of months only, and that indeed we have this Bill now, which is one of the most compendious of Bills in relation to miscellaneous provisions of the criminal law. I speak with some feeling as a former circuit judge. Time and again one was confronted with a brand new labyrinth that somehow or another the innocent judge would have to find his way through, even without the mythical ball of twine. Having thought that one had somehow or another managed to find a way through it, it was only to discover that Parliament was already discussing the next labyrinth that would be placed before the humble judge. I would like to confine my remarks to Part 4, which deals with sentencing. I do so in the knowledge that many people who are concerned with the administration of the criminal law feel deep disquiet with regard to the attitude taken by the Government in relation to sentencing reform. I appreciate that many people at all levels feel that there are grave dangers in what is proposed in that part of the Bill. I appreciate that a great deal can be argued in favour of change in relation to sentencing but I doubt very much whether the Government have hit upon the right approach in this case. I share the fears of those people and feel that, despite the arguments that are advanced by Government and indeed the solid basis for their policies laid down in the excellent report of Lord Justice Gage and his working party, nevertheless there are very considerable dangers and complexities. I invite the House for a moment to consider these matters. My submission is that in the first place the Government are involving themselves in a very revolutionary development in so far as it seeks to curb the discretion that sentencing judges have in passing sentence. Often one is told that the law has been changed and that judges are now constrained by changes in the law. I do not think that happens when you make a sentence a subject of either maxima or minima. All you are doing is moving the area within which the judge exercises discretion. Whenever you deal with discretion per se, you are treading on a path that is extremely dangerous and could ultimately lead to tyranny. I do not suggest that that is brought about by Part 4 but it could lead in that direction. The situation up to now has been that the Court of Appeal has given guidelines from time to time, the advisory body from 1998 has given guidelines, and the Sentencing Guidelines Council under the 2003 Act has given guidelines. There have been ample guidelines. They have, however, been guidelines and no more. The relevant section of the 2003 Act—Section 172—says that the sentencer shall have regard to the sentencing guidelines in relation to the offender’s case. He is fully entitled to depart from them, although the sentencer has the duty then of spelling out why and that becomes a matter of record. Under Clause 111 of the Bill, however, something entirely different occurs. The sentencer there is obliged under the wording of that clause to follow—not to have regard, but to follow—and that situation is entirely different. To my mind, it creates a mandatory situation where there is that obligation, in the first instance at any rate, upon the sentencer to follow the guidelines. It is true that there is an escape clause which entitles the sentencer to have regard to the interests of justice and to justify not following the guidelines in a proper case. That means, however, that the onus in the first instance is upon the sentencer to act within that peremptory order in Clause 111. One does not know how this will be interpreted by the Court of Appeal in years to come if this provision becomes law. In the case of R v Salina Martin, a case determined by the Court of Appeal in 2007, it said simply that guidelines are guidelines—no more, no less. In other words, this was a liberal interpretation that does not affect the sovereign authority vested in the sentencer ultimately to determine sentence. This has created a whole new situation. I suggest that it was wholly unnecessary. The Sentencing Guidelines Council was working well; the Secretary of State for Justice at Second Reading in the other place went out of his way to praise its efforts and achievements. It had only been in existence for a few years and was now bedding down. There was ultimately no reason at all for having it extinguished and recast in the way that Part 4 brings about. By acting in that way, the provision creates a situation where there is a flouting of Parliament and a voiding of the processes of Parliament for this reason. If the situation brought about by Part 4 creates a mandatory responsibility on the judge—I believe it does in the first instance—it means that the Sentencing Council can from time to time, provided it has made the proper consultations set out in Part 4, make new law. That is a law, however, that will never be scrutinised by Parliament. It is ironic that Lord Justice Gage’s working party—I have the highest admiration for those persons and for the work they did—ultimately decided to reject what is called the "Minnesota and North Carolina rigidity of sentencing" system and opted for the New Zealand system. The wording of Clause 111 is directly lifted from the Sentencing Act 2002 of New Zealand. In New Zealand, however, those changes have to go before the legislature. I cannot remember whether it is by way of a negative or positive provision; it does not make a great difference. The noble Baroness, Lady Stern, made an excellent point when she quoted the Secretary of State for Justice as saying that these proposals had nothing at all to do with prison population. Well, I could well have been fooled. If one looks at the excellent report of Lord Justice Gage’s working party, the first paragraph of the introduction deals with nothing but prison population. Therefore Lord Justice Gage and his colleagues must have regarded this as the most important consideration. Did that august body fool itself or was the situation clear from the very start that all this was brought about in the shadow, as it were, of the problem of prison population? I make this suggestion. In Britain we incarcerate more people per 100,000 than any other country in western Europe, with the sole exception of Luxembourg. We have never examined the position in detail and, unless and until we do that, we should not seek to act piecemeal. There may be dozens of reasons. Many are suggested without any specific findings by Lord Justice Gage’s working party. We should, however, go deeply into the whole question of why it is that this happens. Are the people of England and Wales more evil or more disposed to crime than those of other countries? Is it because we have so many statutes that carry a sanction of imprisonment? Is it for some other reason or perhaps for many other reasons? That would be the beginning of wisdom. We should therefore not take any drastic action such as we have in Part 4 unless or until that is done.